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The Problem is Legal Scarcity, not Illegal Greed

Written by Eric Flint

 I devoted most of my last essay to demonstrating, using myself as the example, that finding a pirated copy of an author’s work is not as easy as it seems, at least if you try to do so by using a search engine. Of course, I know perfectly well that DRM enthusiasts will accuse me of loading the question. They will insist that no “real” pirate—more precisely, user of pirate sites—would be naïve enough to try to find a pirated edition of an author’s work simply by the brute force method of using a search engine.

But, in reality, they’re the ones who are loading the question. There is, in fact, not a shred of evidence that most readers have any knowledge of the more sophisticated methods available for finding pirated e-books. And plenty of evidence to the contrary.

Granted, all the evidence—on both sides, mind you—is largely anecdotal. So far as I am aware, at least, no one has done a systematic study to determine what percentage of book readers has an extensive knowledge of what it takes to find pirated texts and download them, easily and quickly.

Still, the anecdotes are pretty overwhelming—and they almost all lean heavily toward one pole in the debate.

Mine.

You can cross-check me by doing a simple little experiment of your own. Just talk to every friend and relative you have who reads books on a regular basis. Ask them a couple of simple questions:

1) Do you look for and read or download pirated books?

2) Even if you don’t, do you know how to do it?

Some of you, who have a lot of friends and relatives who are heavily involved in one or another aspect of the computer industry, will discover that the answer to at least one of the two questions above is “yes.”

But most of you won’t. Most of you will discover exactly the same thing I did when I ran this experiment with friends and relatives.

The answer I got to the first question was “no,” in most cases, with a few people saying “only if the site is legitimate, like Gutenberg or the Baen Library.”

The answer I got to the second question was rather fascinating. A majority responded “yes”—but when I pressed them for the details, all but one of them got very vague. What it eventually came down to was one or another variation on “well, I figure if you use a search engine and look long enough . . .”

Which is exactly the point I made in my last essay. Sure—if you look long enough. But only a tiny percentage of people are going to do that, if a publisher or an author makes their books readily available in a user-friendly unencrypted format, and at a reasonable price.

The one person who gave me a clear, firm and positive “yes” to that question, was indeed able to tell me in excruciating detail how he would go about looking for pirated texts, using methods that were far more sophisticated than the brute force method of using a search engine. And don’t ask me for the details, because after the first few words his entire explanation went right over my head. I am computer-literate enough to make a good living working at a computer. But the fact is that, like most people who use computers, I am not particular interested in the hardware and software involved. I am simply interested in the result.

The point being that I don’t know how to steal one of my own books, without wasting a lot of time trying.

If you’re wondering, by the way, the same tech-capable friend responded “no” when I ask him if he actually used the method he described. The reason? “Why bother?” he said. “Most of what I want to read electronically I buy through Baen or Fictionwise. It’s unencrypted, cheap, legal, and it’s no hassle. So why would I screw around just to save a few bucks? It would still take me longer than buying a legal copy, the quality of the text is likely to be lousy—and my time is valuable.”

That will generally prove to be the case. As a rule—there are always exceptions, of course, but not many—people who are well-enough educated technically to be able to devise quick ways to obtain pirated books, are also making a good living and don’t need to fret over a few dollars. They are no more likely to get involved in downloading illegal books—provided they can get what they want in a legal manner—than they are to shoplift a ten or twenty dollar item from a walk-in store.

There’s a very important point here. Don’t ever believe anyone when they insist on either one of the following statements:

1) Someday, when the technology gets good enough, print-on-demand books will become the dominant form of book publishing.

2) Someday, when the technology gets good enough, pirated books will be as easy to find as legitimate books.

Both statement are blithering nonsense, patently untrue, and for exactly the same reason. Push comes to shove, they both defy the laws of thermodynamics. Adherents to these opinions believe in the equivalent of perpetual motion machines and free lunches that are actually free.

Here’s the cold, hard reality:

No matter how advanced the technology of printing becomes, it will never be possible to produce books-on-demand as cheaply as they can be produced in mass production runs. Why? Because of what’s called, in many industries including machining, the “set-up cost.”

It takes just as much time, labor and money for a publisher or a printer to set up a production run of one book as it does a production run of one hundred thousand books. (And note, by the way, that it doesn’t matter whether the set-up is being done by human or purely mechanical labor. Either way, it’s still set-up time and it’s still an expense.) That being the case, the cost of each book in either print run will favor the mass production run.

And, that being true, it follows that any time a publisher thinks a given book will sell a lot of copies—and it’s those books that sustain the entire industry to begin with—they will choose to do a mass production run. In short, print-on-demand will never becomes the dominant branch of the publishing industry. It will always remain a secondary branch. (Not an unimportant one, necessarily. POD has become a very valuable branch of publishing for any text that has a low volume of sales but which should still be kept available to the public.)

And now, here’s the cold, hard reality when it comes to pirated e-books:

No matter how advanced the technology of publishing and text distribution becomes, it will never be as cheap to produce and distribute a book illegally as it is to produce and distribute it legally. Nor, from the customer’s standpoint, will it ever become as easy to obtain an illegal copy as it is to obtain a legal one.

Whatever else it is, theft is also work. Crooks and thieves have to work like anybody else, if they want to make money. The difference is that, by the very nature of being illegal, the work that crooks do is typically very labor-intensive and very time-consuming and very expensive. Why? Well, if for no other reason, because they can’t take advantage of a multitude of labor-saving devices such as are developed for all legitimate industries.

A would-be jewelry thief, for instance, cannot go online and order an Acme Jewel Store Robber’s Kit from www.CrimePays.com. Nor, having robbed the jewelry store, can he find the best price available for stolen jewelry from fences in his area by looking in the yellow pages. Nor, if he decides to cut out the middleman and hawk the stolen jewelry himself, can he go around and plaster his neighborhood with signs inviting everyone to come to the stolen jewelry sale he’s holding in his yard come next Tuesday.

Crime, whatever else it may be, is also one of the crudest and most primitive forms of human labor. It has to be, by the very nature of being illegal.

The same applies to pirated books. A book pirate cannot use any of the following labor-saving devices:

—He cannot set up and maintain a stable web site where people can come, year after year, to get his product. He cannot, in other words, do what Amazon or Fictionwise or Baen Books does.

—To the contrary, he normally has to keep changing his web site. But doing that inevitably makes it far more difficult for his would-be customers to find him.

—Or, he might choose to try to distribute his pirated text by burying it inside a large and complex web site where his illegal stuff is at least partly disguised by legitimate users. But, again, that’s just another way of making things tough on his would-be customers.

This is the reason—I swear, this is not rocket science—that thieves always target items which are very high-value for the labor invested to steal them. It’s simply not worth their time and trouble otherwise.

To put it another way, pirates rob bullion ships. They don’t rob grain ships. (Unless they’re slavers whose target is the crew itself—but that simply illustrates the same point.)

There is only one proviso here. And that’s the clause I put in italics above: Provided they can get what they want in a legal manner.

Here is the truth, which the music recording industry has been trying to deny for years:

Almost all electronic piracy happens because the producers of a given copyrighted product adamantly refuse to give their customers what their customers want. To put it another way, what drives electronic piracy on a mass scale is never greed. The product—whether we’re talking about a CD, a DvD, or a book—simply isn’t that intrinsically valuable to begin with.

No, it’s always scarcity. That scarcity can be measured in several different ways: price, nature of the product, ease of acquiring the product, whatever. Often enough, all those ways combined.

The music recording industry has provided the world with a perfect illustration of the principle. What triggered the mass eruption of illegal music file sharing beginning some years ago?

Was the population suddenly infected with a greed virus that had been dormant previously?

No, obviously not. What happened was that when the time came that the technical means existed for customers being able to obtain what they really wanted, the music recording industry refused to provide it and insisted that their customers had to keep buying the product in a format that the industry found convenient. Naturally and inevitably, since the product desired was being kept legally scarce, people developed illegal ways of obtaining it.

To be specific, most music that people listen to are songs. And, as a rule, a song doesn’t last more than a few minutes. Probably not more than three minutes, on average.

So, once it became technically feasible, the music industry’s customers were no longer—understandably, and with good and legitimate reason—willing to pay $15 or $16 or even $18 to buy an entire CD, when all they really wanted from it was one or two songs.

If you measure this in cost-per-minute of entertainment, the music recording industry insisted that people had to be willing to spend as much as six dollars a MINUTE to enjoy their music.

So long as the technical means didn’t exist to enable people to get around this industry-created obstacle, their customers lived with it. Although, be it noted, there was always a lot of “piracy” going on, and for many years prior to the advent of the digital era. It was quite common for people to record from a vinyl disk or a CD onto a tape deck, for instance. And, somehow, the music industry didn’t go bankrupt.

But, inevitably, once the digital era spread widely enough, the music recording industry found itself overwhelmed by what amount to digital poaching.

I have absolutely no sympathy for them. They are nothing but monopolist gougers who got exactly what they deserved. At any time, with their resources, they could have easily provided their customers with what their customers wanted—and made a profit in the process. They could have easily done what Napster did, to name just one example.

Instead—following their long-standing customs and habits—the music recording industry relied on their lawyers and their stooges in Congress. They got ever-more-Draconian legislation passed, and began filing thousands of lawsuits using these new laws.

Many of these lawsuits were bogus. There have been any number of documented instances where the music recording industry sued the wrong people, and . . .

Suffered no penalty at all. Once in a while, some particularly stubborn victim eventually—it always takes years—manages to get the industry to pay for their legal costs.

But that’s it. No punitive damages of any kind have ever been leveled against this rapacious industry—which is a truly piratical one—despite the fact that their strategy amounts to nothing more than a legal form of extortion. What they do, in essence, is charge someone with illegal downloading and demand thousands of dollars in money or they’ll take them to court—knowing full well that very few people are in position to fight a long and protracted legal battle, even if the charges are false.

When gangsters do this, it’s called the protection racket. When the Recording Industry Association of America does it, it’s called the Digital Millennium Copyright Act

How sweet it is, to be a Friend of Congress.

Yet, despite these Draconian new laws and the supine and servile attitude of the nation’s legislators toward the music recording industry, the RIAA still hasn’t been able to stem the tide.

And no wonder. George Santayana’s famous dictum “Those who cannot remember the past, are condemned to repeat it” is borne out once again.

The fact that the majority of young people today take downloading pirated music and file-sharing for granted has nothing to do with either their age or electronics. It is simply a current manifestation of that ancient human behavior known as poaching or smuggling—which always assumes massive proportions whenever an elite class of people is able to get the laws twisted in their favor.

It’s enough to point out that, over a century and a half ago, Macaulay predicted what would happen to the RIAA:

I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot . . .

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

Yes, I know I’ve quoted this before. It cannot be quoted too often.

But the publishing industry, thankfully, is still a long way from this situation. It has still—not yet—crossed the social Rubicon that the RIAA crossed many years ago. That Rubicon, of course, being the point at which the public’s perception of a given industry changes from “legitimate folks” to “bunch of greedy gouging bums.”

Cross that Rubicon and, just as Macaulay predicted, you will find yourself engaged in what amounts to guerrilla warfare with the entire population—or, at least, that segment of it which used to be your customer base. And once you let that genie out of the bottle, you will have a very hard time ever getting it back in again.

The publishing industry has been tagging along behind the music recording and movie industries, when it comes to this issue. But “tagging along” is the right way to put it. Publishers haven’t been leading the charge and, with a few exceptions, have generally kept a low profile in the debate. Probably the best known and most notorious of those exceptions was the absurd attack on libraries for supposedly aiding and abetting online piracy that was launched a few years ago by Patricia Schroeder, the president and CEO of the Association of American Publishers. But that affair didn’t begin to get the publicity that the RIAA’s mass lawsuits have gotten, and it never came to anything anyway.

There have even been some hopeful signs, in the last few years, that at least some publishers are pulling back from the precipice and are deciding not to go over the cliff with the RIAA.

Why has publishing not gone along full-heartedly with the music recording industry?

Well, there are several reasons, I think. The first and possibly the most important is that the standard format for the standard product of the publishing industry doesn’t grate customers the same way the equivalent product of the music recording industry does.

Put simply, the music recording industry sells songs that take three minutes to listen to, and the publishing industry sells books that take a minimum of three hours to read (and usually longer).

That’s a big difference. Even when an e-book is encrypted and over-priced, the book buyer is not being subjected to the same six-dollar-a-minute sheer gouging that they are from the music recording industry.

An aside, here. I’ve never seen a study of this aspect of the problem of music file-sharing, but I’m willing to bet that if a study were made it would discover that there is comparatively little in the way of illegal file-sharing when it comes to classical music. The reason, of course, is that classical music (along with some jazz and some international music) is the one major branch of music whose output is not primarily short songs. The typical classical music CD will contain something like a symphony or a string quartet or a violin concerto—i.e., a piece of music that lasts perhaps half an hour or longer. So, customers who spend $18 for such a CD don’t feel that they’ve been particularly gouged, as does someone who spends $18 just to listen to one three-minute cut on the album.

The second reason, I suspect, is that there is still a much bigger disparity between legal and illegal versions of the same product, when it comes to books compared to music. So I’ve been told, anyway. I’ve never downloaded music, myself, legally or otherwise. But I’ve been told by people who have—legally and otherwise—that the quality of the downloaded product is not usually noticeably different from a version obtained legally.

With books, that’s usually not true. Most pirated texts display significantly greater degradation than do the texts of legitimately produced books. That’s because most pirated texts are obtained by OCR scanning, and OCR scanning is very far from perfect. A scanned text like that has to be proof-read carefully—and proof-reading takes hours and is one of those skills that it is very hard to computerize. In fact, it’s impossible, at least so far.

Typically, a book pirate isn’t willing to put the time and effort into proof-reading, because they are rarely if ever making any money from their illegal actions. Most book piracy today is done by people who get some sort of weird thrill out of it. Super-annuated juvenile delinquents, who think information wanna be fwee as if electrons are marching around holding up placards and demanding their rights. Their behavior is the online equivalent of spray-painting gang logos on garage doors.

Whatever the reasons might be, however, the fact remains. The publishing industry has not yet gone over the DMCA cliff the way the music recording industry has. It’s not even—yet, anyway—perched at the brink.

So, there’s still time to save the critter before it allows itself to be stampeded over the cliff.

Starting with my next essay, I’ll take up the problems and opportunities of the electronic era in publishing from what you might call a positive standpoint, instead of the negative one I’ve been generally taking thus far. By “negative,” simply meaning that I’ve spent most of my time countering the arguments in favor of DRM.

Now let’s move on. Let’s see how authors and publishers can take advantage of the digital era, instead of being scared to death by it.

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